B-135569, JUL. 28, 1958

B-135569, JUL. 28, 1958

TO LANGDON AND HUGHES ELECTRIC COMPANY, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 13, 1958, WHEREIN YOU ALLEGE THAT AN ERROR WAS MADE IN YOUR BID FOR FURNISHING VARIOUS TYPES OF TUBES ON WHICH NEGOTIATED CONTRACT NO. AF 30/635/-9169 WAS BASED.

IT APPEARS FROM THE RECORD THAT ON DECEMBER 20, 1957, THE ROME AIR FORCE DEPOT, GRIFFISE AIR FORCE BASE, NEW YORK, CONTACTED A REPRESENTATIVE OF YOUR CORPORATION BY TELEPHONE FOR QUOTATIONS ON VARIOUS TYPES OF TUBES; AND THAT IN A LATER TELEPHONE CONVERSATION AND FINALLY BY LETTER DATED DECEMBER 30, 1957, YOUR REPRESENTATIVE CONFIRMED THE ORAL QUOTATIONS GIVEN BY HIM. ON JANUARY 6, 1958, A FORMAL CONTRACT BASED ON THE PRICES SET FORTH IN YOUR CONFIRMING LETTER OF DECEMBER 30, 1957, WAS EXECUTED BY A REPRESENTATIVE OF YOUR CORPORATION. ITEM 1 OF THE CONTRACT COVERED THE FURNISHING OF SIX GL 6942 TUBES AT A UNIT PRICE OF $612 EACH AND ALL ITEMS UNDER THE CONTRACT WERE TO BE DELIVERED NOT LATER THAN JANUARY 10, 1958.

AFTER DELIVERY OF THE REQUIRED ITEMS, YOU ADVISED THE CONTRACTING OFFICE BY LETTER OF JANUARY 21, 1958, THAT AN ERROR HAD BEEN MADE BY YOU IN QUOTING ON THE SIX GL-6942 TUBES COVERED BY ITEM 1 OF THE CONTRACT; THAT AT THE TIME YOU WERE ORIGINALLY REQUESTED TO SUBMIT AN ORAL QUOTATION ON THE TUBES, YOU WERE REQUESTED TO QUOTE A PRICE FOR FURNISHING EITHER SIX GL-6183 TUBES OR SIX GL-6942 TUBES; THAT YOU DECIDED TO FURNISH SIX GL- 6183 TUBES AT A UNIT PRICE OF $612 EACH; THAT SUBSEQUENTLY A REPRESENTATIVE OF THE CONTRACTING OFFICE NOTIFIED YOU BY TELEPHONE THAT THE GL-6183 TUBES MUST ARRIVE AT THE AIR BASE NOT LATER THAN JANUARY 10TH AND THAT YOU THEN CONTACTED YOUR SUPPLIER WHO, YOU STATE, INFORMED YOU THAT DELIVERY ON GL-6183 TUBES WAS THREE TO FOUR WEEKS, WHEREAS GL-6942 TUBES COULD BE SHIPPED FROM STOCK; AND THAT, BELIEVING THE GL-6942 TUBES TO BE AN EXACT SUBSTITUTE AT THE SAME PRICE, YOU DELETED THE GL-6183 TUBES AND QUOTED GL-6942 TUBES AT A UNIT PRICE OF $612 EACH. YOU ALSO STATED THAT WHEN YOU RECEIVED YOUR INVOICE FROM YOUR SUPPLIER, YOU WERE VERY MUCH DISMAYED TO FIND THAT YOU WERE BILLED FOR THE GL-6942 TUBES AT A PRICE OF $725 EACH AND THAT THE PRICE YOU SHOULD HAVE QUOTED FOR THE GL-6942 TUBES IS $769 EACH. BY LETTER DATED FEBRUARY 7, 1958, THE CONTRACTING OFFICE ADVISED YOU THAT YOUR REQUEST FOR RELIEF WAS TEMPORARILY DISAPPROVED; THAT PRIOR TO THE RECEIPT OF YOUR LETTER, THAT OFFICE HAD RECEIVED AN INVOICE FROM THE GENERAL ELECTRIC COMPANY--- YOUR SUPPLIER--- WHICH INDICATES A COST OF $650 EACH FOR A QUANTITY OF TWO GL-6942 TUBES; THAT IN VIEW OF THE DIFFERENCE IN PRICES QUOTED BY YOU AND GENERAL ELECTRIC COMPANY, YOU SHOULD CONTACT YOUR SUPPLIER TO DETERMINE IF THE PRICE INVOICED TO YOU WAS CORRECT AND THAT IF AFTER CHECKING WITH YOUR SUPPLIER, AN ADJUSTMENT IN THE PRICE QUOTED TO YOU BY YOUR SUPPLIER COULD NOT BE MADE, YOU SHOULD ADDRESS A REQUEST FOR RELIEF TO THE GENERAL ACCOUNTING OFFICE.

IN A LETTER DATED MARCH 13, 1958, ADDRESSED TO OUR OFFICE, YOU REQUESTED THAT THE CONTRACT PRICE OF THE GL-6942 TUBES BE ADJUSTED TO COMPENSATE YOU FOR THE LOSS SUSTAINED UNDER THE CONTRACT. BY LETTER DATED APRIL 11, 1958, YOU REQUESTED THAT THE CONTRACT PRICE OF THE GL 6942 TUBES BE CORRECTED TO READ $725 EACH--- THE PRICE WHICH YOU ALLEGED WAS PAID BY YOU TO YOUR SUPPLIER. IN SUPPORT OF YOUR ALLEGATION OF ERROR, YOU SUBMITTED THE PRINTED PRICE LIST OF YOUR SUPPLIER, THE GENERAL ELECTRIC COMPANY, AND A COPY OF A LETTER DATED MARCH 4, 1958, IN WHICH YOU WERE ADVISED THAT THE $725 PRICE PER TUBE WHICH IT BILLED YOU FOR SIX OF THE GL-6942 TUBES WAS THE LEGAL PRICE TO DISTRIBUTORS AND WAS CORRECT AND THAT THE FACT THAT THE COMPANY HAD FURNISHED THE IDENTICAL TYPE OF TUBES TO THE GOVERNMENT AT A PRICE OF $650 EACH COULD IN NO WAY EFFECT THE PRICE TO BE PAID BY IT, SINCE THE COMPANY WAS LEGALLY OBLIGATED TO QUOTE THE ORIGINAL EQUIPMENT MANUFACTURER'S PRICE TO THE GOVERNMENT.

THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED IN RESPONSE TO THE ORAL REQUEST OF THE CONTRACTING OFFICE WAS UPON YOU. SEE FRAZIER- DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C.CLS. 120, 163. CONSEQUENTLY, SINCE YOU SUBMITTED A BID ON THE GL-6942 TUBES WITHOUT DEFINITE KNOWLEDGE THAT THESE TUBES, WHILE ACCEPTABLE AS A SUBSTITUTE FOR THE GL-6183 TUBES, WOULD NOT COST MORE, YOU MUST ASSUME THE CONSEQUENCES OF SUCH ERROR. ANY ERROR THAT WAS MADE IN THE MATTER WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT, AND WE FIND NO GROUND TO CHARGE THE GOVERNMENT WITH NOTICE THEREOF. THUS, THE ERROR WAS UNILATERAL --- NOT MUTUAL--- AND, THEREFORE, DOES NOT ENTITLE YOU TO RELIEF. SEE SALIGMAN ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507; AND OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249, 259.

MOREOVER, THE CONTRACTING OFFICER HAS REPORTED THAT YOU WERE REQUESTED TO VERIFY YOUR BID AND THAT YOU CONFIRMED YOUR BID PRICE OF $612 EACH FOR THE GL-6942 TUBES BY TELEPHONE AND BY CONFIRMING LETTER DATED DECEMBER 30, 1957. AFTER SUCH VERIFICATION, THE CONTRACTING OFFICER WAS UNDER NO OBLIGATION TO MAKE FURTHER INQUIRY AS TO THE CORRECTNESS OF THE BID. SEE CARNEGIE STEEL COMPANY V. CONNELLY, 89 N.J.L. 1, 97A. 774; AND SHRIMPTON MANUFACTURING COMPANY V. ERIN, 59 TEX.CIV.APP. 352, 125 S.W. 942. THE FACT THAT THE ACCEPTANCE OF YOUR BID WAS NOT MADE UNTIL AFTER YOU WERE AFFORDED AN OPPORTUNITY TO VERIFY YOUR BID PRECLUDES ANY ASSUMPTION THAT THE CONTRACTING OFFICER EXERCISED BAD FAITH OR ATTEMPTED TO TAKE ADVANTAGE OF YOU. THE ACCEPTANCE OF YOUR BID UNDER THE CIRCUMSTANCES INVOLVED CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES. SEE UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313; AND AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75.

FURTHERMORE, BY YOUR EXECUTION OF CONTRACT NO. AF 30/635/-9169 ON JANUARY 6, 1958, YOU UNEQUIVOCALLY AGREED TO FURNISH THE GL-6942 TUBES AT A UNIT PRICE OF $612. SUCH CONTRACT IS PRESUMED IN LAW TO EXPRESS THE FINAL UNDERSTANDING OF THE PARTIES. SEE BRAWLEY V. UNITED STATES, 96 U.S. 168, 173, WHEREIN THE SUPREME COURT OF THE UNITED STATES SAID:

"* * * THE WRITTEN CONTRACT MERGED ALL PREVIOUS NEGOTIATIONS, AND IS PRESUMED, IN LAW, TO EXPRESS THE FINAL UNDERSTANDING OF THE PARTIES. THE CONTRACT DID NOT EXPRESS THE TRUE AGREEMENT, IT WAS THE CLAIMANT'S FOLLY TO HAVE SIGNED IT.'

ALSO, SEE SIMPSON V. UNITED STATES, 172 U.S. 372.

ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, THERE APPEARS TO BE NO LEGAL BASIS FOR INCREASING THE PRICE SPECIFIED IN CONTRACT NO. AF 30/635/- 9169 FOR ITEM 1, AS REQUESTED. WE HAVE NO LEGAL AUTHORITY TO RELIEVE CONTRACTORS FROM THE CONSEQUENCES OF AN ERRONEOUS BID, AFTER ACCEPTANCE, UNLESS THE ACCEPTANCE OF THE BID WAS UNDER SUCH CIRCUMSTANCES AS WOULD JUSTIFY THE IMPUTATION OF BAD FAITH TO THE OFFICER ACCEPTING IT. ..END :